Com. v. Thompson, K. ( 2014 )


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  • J-S57035-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    KOREY THOMPSON
    Appellant                     No. 506 EDA 2014
    Appeal from the Order entered January 23, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No: MC-CR-0026151-2011
    BEFORE: DONOHUE, MUNDY, and STABILE, JJ.
    MEMORANDUM BY STABILE, J.:                          FILED DECEMBER 04, 2014
    Appellant Korey Thompson appeals from the January 23, 2014 order1
    of the Court of Common Pleas of Philadelphia County (trial court), which
    denied his petition for writ of certiorari2 (Petition) after he was convicted in
    ____________________________________________
    1
    Insofar as Appellant attempts to appeal from the July 26, 2013, judgment
    of sentence entered in Municipal Court of Philadelphia, we must disagree.
    The appeal here lies from the trial court’s January 23, 2014 order denying
    Appellant’s Petition. See generally Commonwealth v. Wormley, 
    949 A.2d 946
    , 947 (Pa. Super. 2008). Accordingly, we have corrected the
    caption above.
    2
    As we have explained:
    A petition for a writ of certiorari is an alternative to an appeal for
    a trial de novo in the common pleas court. Whereas the petition
    requests that the common pleas court review the record made in
    the municipal court, the appeal gives the defendant a new trial
    without reference to the record established in the municipal
    court. The following example illustrates the difference between
    the two procedures: “[I]f the evidence was insufficient to sustain
    the conviction, [the] . . . writ of certiorari would terminate the
    (Footnote Continued Next Page)
    J-S57035-14
    the Philadelphia Municipal Court of driving under the influence (DUI) of a
    controlled substance in violation of Section 3802(d)(1)(iii) and (2) of the
    Motor Vehicle Code (Code).3 On appeal, Appellant alleges that the municipal
    court erred in denying his pre-trial suppression motion. For the reasons set
    forth below, we affirm the trial court’s order.
    The    facts     and    procedural     history   underlying   this   appeal   are
    undisputed. As summarized by the trial court:
    On June 18, 2011, following his arrest at a sobriety
    checkpoint, [Appellant] was charged under Chapter 38 of the
    . . . Code    for driving under the influence of a controlled
    substance metabolite . . . and driving under the influence under
    a drug or combination of drugs that impair ability to safely
    operate a vehicle . . . . It was [Appellant’s] second offense.
    [Appellant] filed a [m]otion to [s]uppress, which was heard
    by the Honorable Gerard Kosinski on July 26, 2012. At the
    _______________________
    (Footnote Continued)
    prosecution, while a de novo appeal would merely require a new
    trial at which the Commonwealth would have another
    opportunity to convict the defendant.”
    Commonwealth v. Speights, 
    509 A.2d 1263
    , 1264 n.2 (Pa. Super. 1986)
    (citation omitted), appeal denied, 
    535 A.2d 83
    (Pa. 1987).
    3
    Section 3802(d) of the Code, relating to controlled substances, provides in
    pertinent part:
    An individual may not drive, operate or be in actual physical
    control of the movement of a vehicle under any of the following
    circumstances:
    (1) There is in the individual’s blood any amount of a:
    ....
    (iii) metabolite of a [schedule I, II, or III]
    substance[.]
    (2) The individual is under the influence of a drug or
    combination of drugs to a degree which impairs the
    individual’s ability to safely drive, operate or be in actual
    physical control of the movement of the vehicle.
    75 Pa.C.S.A. § 3802(d)(1)(iii), (2).
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    [m]otion to [s]uppress hearing, Lieutenant James McCarrick
    testified to instituting the sobriety checkpoint at 3600
    Kensington Avenue on June 17, 2011, beginning at 10:00 p.m
    and concluding at 4:00 a.m. the following morning, June 18,
    2011. . . .
    On the basis of the evidence presented, Judge Kosinski
    held that the sobriety checkpoint comported with all
    constitutional requirements.
    ....
    The case proceeded to waiver trial on June 17, 2013
    before the Honorable Bradley K. Moss.               Based on the
    [testimonial evidence] . . . , and the legal arguments of
    [Appellant’s] counsel and the Commonwealth, Judge Moss found
    [Appellant] guilty of the offense[s] charged.          [Appellant’s]
    counsel moved for a mistrial on the grounds that [Appellant] had
    previously appeared before Judge Moss, which Judge Moss
    denied.
    [Appellant], through his counsel, filed [the Petition], which
    the [trial court] heard on January 23, 2014. . . . [The trial
    court], after hearing oral arguments, denied [Appellant’s]
    Petition[.]
    On January 30, 2014, [Appellant] timely filed this [n]otice
    of [a]ppeal to the Superior Court. Pursuant to [the trial court’s]
    directive, on February 20, 2014, [Appellant] timely submitted his
    [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal.
    Trial Court Opinion, 3/21/14, at 1-3 (internal record citation omitted).
    Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement, the trial court
    issued a Pa.R.A.P. 1925(a) opinion. In the Rule 1925(a) opinion, the trial
    court concluded that, based on the record, Appellant’s claim challenging the
    municipal court’s denial of his suppression motion was without merit,
    because the sobriety checkpoint passed constitutional muster.         The trial
    court also dismissed as lacking merit Appellant’s argument that the data or
    statistical evidence relied upon by Lieutenant McCarrick to institute the
    sobriety checkpoint was stale.
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    On appeal,4 Appellant raises a single issue for our review:
    Should not the evidence against [A]ppellant have been
    suppressed where [A]ppellant was illegally stopped at a DUI
    checkpoint that did not comply with constitutional standards
    because the specific location selected for the checkpoint was not
    supported by any data on DUI[-]related arrests or accidents at
    that location, and it was not chosen because it was likely to be
    traveled by intoxicated drivers?
    Appellant’s Brief at 3.
    [T]o be constitutionally acceptable, a checkpoint[5] must meet
    the following five criteria: (1) vehicle stops must be brief and
    must not entail a physical search; (2) there must be sufficient
    warning of the existence of the checkpoint; (3) the decision to
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    4
    When considering a petition for writ of certiorari, a common pleas court sits
    as an appellate court with respect to the judgment of sentence entered in
    the lower court. See Commonwealth v. Dincel, 
    457 A.2d 1278
    , 1281-82
    (Pa. Super. 1983). As a result, the standards of review used by the common
    pleas courts are identical to the standards used by this Court. Thus, with
    respect to the denial of a suppression motion, that review:
    [is] limited to determining whether the [suppression court’s]
    factual findings are supported by the record and whether the
    legal conclusions drawn from those facts are correct. [Because]
    the Commonwealth prevailed in the suppression court, we may
    consider only the evidence of the Commonwealth and so much of
    the evidence for the defense as it remains uncontradicted when
    read in the context of the record as a whole. Where the record
    supports the factual findings of the [suppression] court, we are
    bound by those facts and may reverse only if the legal
    conclusions drawn therefrom are in error.
    Commonwealth v. Scarborough, 
    89 A.3d 679
    , 683 (Pa. Super. 2014)
    (quotation omitted). We note that in In the Interest of L.J., 
    79 A.3d 1073
    (Pa. 2013), our Supreme Court recently applied prospectively a new rule
    regarding the scope of review in suppression matters. 
    L.J., 79 A.3d at 1088-89
    . Specifically, it clarified that an appellate court’s scope of review in
    suppression matters includes the suppression hearing record, and not
    evidence elicited at trial. Because the litigation in this case commenced
    prior to L.J., it has no bearing on the instant case.
    5
    Section 6308 of the Motor Vehicle Code authorizes law enforcement to
    engage in “systematic program[s] of checking vehicles or drivers,” i.e.,
    checkpoints or roadblocks. 75 Pa.C.S.A. § 6308(b).
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    J-S57035-14
    conduct a checkpoint, as well as the decisions as to time and
    place for the checkpoint, must be subject to prior administrative
    approval; (4) the choice of time and place for the checkpoint
    must be based on local experience as to where and when
    intoxicated drivers are likely to be traveling; and (5) the decision
    as to which vehicles to stop at the checkpoint must be
    established by administratively pre-fixed, objective standards,
    and must not be left to the unfettered discretion of the officers
    at the scene.
    Commonwealth v. Worthy, 
    957 A.2d 720
    , 725 (Pa. 2008) (summarizing
    Commonwealth           v.    Blouse,      
    611 A.2d 1177
      (Pa.   1992),      and
    Commonwealth v. Tarbert, 
    535 A.2d 1035
    (Pa. 1987)6 (plurality)
    (generally known as the “Tarbert/Blouse guidelines”)).                   “Substantial
    compliance with the Tarbert/Blouse guidelines is all that is necessary to
    minimize the intrusiveness of a roadblock seizure to a constitutionally
    acceptable level.”      Commonwealth v. Yastrop, 
    768 A.2d 318
    , 323 (Pa.
    2001).      The underlying policy of Tarbert/Blouse is the prevention of
    arbitrary    checkpoints,      which     violate    constitutional   prohibitions   on
    unreasonable searches and seizures. See 
    Blouse, 611 A.2d at 1178
    .
    Instantly, Appellant essentially argues that the Commonwealth did not
    satisfy the Tarbert/Blouse guidelines because it failed to adduce sufficient
    evidence to establish that the location for the checkpoint was likely to be
    traveled by intoxicated drivers. Appellant’s Brief at 7. As a result, Appellant
    argues, the checkpoint was unconstitutional, and the evidence obtained
    therefrom should have been suppressed. 
    Id. We disagree.
    ____________________________________________
    6
    The Tarbert court balanced the intrusion on individuals from checkpoints
    with the government’s legitimate interests. 
    Tarbert, 535 A.2d at 1042-43
    .
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    Under      Pennsylvania       Rules     of      Criminal    Procedure,     “[t]he
    Commonwealth shall have the burden . . . of establishing that the challenged
    evidence    was    not    obtained    in   violation    of   the   defendant’s   rights.”
    Pa.R.Crim.P. 581(H). To establish that a roadblock likely is to be traveled by
    intoxicated drivers, the Commonwealth, at the minimum,7 must adduce
    evidence sufficient to indicate that the location of the roadblock was selected
    based on an evaluation of DUI arrests in a particular police district, which
    has a disparately high number of DUI arrests.                See Commonwealth v.
    Fioretti, 
    538 A.2d 570
    , 576 (Pa. Super. 1988) (upholding a checkpoint
    where its location in District 13 was chosen based on an evaluation of drunk-
    driving arrests in the fifteen districts comprising the Williamsport Police
    ____________________________________________
    7
    Roadblocks are deemed constitutional where the Commonwealth provides
    a greater quantum of location-specific evidence of DUI arrests or accident to
    justify the establishment of a roadblock. See Commonwealth v. Stewart,
    
    846 A.2d 738
    , 741 (Pa. Super. 2004) (“[T]he route selected was likely to be
    traveled by intoxicated drivers . . . . The record indicates that there were
    thirty-two [DUI] arrests and twenty-six underage drinking citations in the
    area of the roadblock over the previous six years[.]”), appeal denied, 
    885 A.2d 42
    (Pa. 2005); Commonwealth v. Rastogi, 
    816 A.2d 1191
    , 1193 (Pa.
    Super. 2003) (“[The officer] also stated that for confirmation he looked at
    Philadelphia Police Department accident investigation statistics for the years
    1996 and 1997, which showed 80 and 101 arrests for those years
    respectively on Allegheny Avenue.”), appeal denied, 
    856 A.2d 833
    (Pas.
    2004); Commonwealth v. Ziegelmeier, 
    685 A.2d 559
    , 562 (Pa. Super.
    1996) (“[The officer] stated that during a thirteen month period from
    September 1, 1993, to October 1, 1994, he had statistics that showed there
    were 58 DUI arrests in the area of the checkpoint, out of a total of 80 DUI
    arrests in the entire borough.”); Commonwealth v. Myrtetus, 
    580 A.2d 42
    , 45 (Pa. Super. 1990) (“[T]he selected roadblock location, time and day
    of the week were among the highest for DUI arrests[.]”).
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    Department, and the record indicated that the district had a disparately high
    number DUI arrests).
    Instantly, to establish its burden of proof, the Commonwealth at the
    suppression hearing offered the testimony of Philadelphia Police Lieutenant
    James McCarrick, employed in the accident investigation division.           N.T.
    Hearing, 7/26/12, at 6. Lieutenant McCarrick testified that he was the DUI
    coordinator for the City of Philadelphia. 
    Id. He also
    testified that, as the
    DUI coordinator, he has “received training from the State Police in the
    operation administration of DUI checkpoints.” 
    Id. Regarding the
    particular checkpoint at issue sub judice, Lieutenant
    McCarrick testified that he instituted the sobriety checkpoint at 3600
    Kensington Avenue on June 17, 2012. 
    Id. at 7.
    He also testified that he
    chose the 3600 Kensington location based on statistical evidence from 2007
    to 2009.    
    Id. Specifically, describing
    how he examines the statistics,
    Lieutenant McCarrick relayed:
    Basically, what I do is break down the entire City of Philadelphia
    into individual districts, seven-day periods, 24-hour blocks. This
    is the 24th District, which, is in that time period was fifth is in
    the city for the number of DUI-related incidents, and it also tells
    me the largest majority of DUI incidents occur between 10:00
    p.m. and 4:00 a.m. on Friday and Saturday.
    
    Id. (emphasis added).
    Lieutenant McCarrick further testified that he chose
    the 3600 Kensington location because it was “large and safe enough to
    sustain an operation . . . which consists of four vehicles, 18 officers, three
    supervisors, and one large processing center, approximately the size of a fire
    truck.” 
    Id. at 7-8.
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    On cross-examination, elaborating on his background, Lieutenant
    McCarrick remarked “I go to training. I receive my training. I go to updated
    training each year; and, in the training, the instructors use various methods,
    whether it be slide shows, chalkboards, and the rest is physical operation
    itself.” 
    Id. at 11.
    He, however, acknowledged that he did not have written
    materials or guidelines on how to operate a sobriety checkpoint. 
    Id. at 10-
    11. Lieutenant McCarrick further acknowledged that he personally selected
    the location and date of the checkpoint at 3600 Kensington Avenue. 
    Id. at 11.
       Explaining how he collected information necessary to initiate a
    checkpoint, Lieutenant McCarrick testified: “I tabulated everything DUI that
    took place in the entire city during that three-year period, I broke down into
    districts, into days, into hours.” 
    Id. at 12.
    With respect to the nature of the
    underlying information, Lieutenant McCarrick testified that “every DUI arrest
    in the city . . . is assigned a . . . number of that arrest; where it took place;
    when it took place; who was arrested. I’m able to see every one of those
    arrests.”   
    Id. at 13.
      He, however, conceded that he did not review any
    Pennsylvania Department of Transportation (DOT) studies. 
    Id. Lieutenant McCarrick
    repeated that the checkpoint at issue ran from
    10:00 p.m. until 4:00 a.m. 
    Id. at 14.
    He also explained that, although the
    City of Philadelphia is 143 square miles, the 24th District, in which the 3600
    block of Kensington Avenue is located, is roughly 2.2 square miles. 
    Id. at 12.
    Finally, Lieutenant McCarrick admitted that DUI-related information was
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    not specific to any location within the 24th district, including the 3600 block
    of Kensington Avenue. 
    Id. Based on
    the evidence of record, we conclude that, under Fioretti, the
    Commonwealth provided sufficient evidence to justify the establishment of a
    checkpoint at 3600 Kensington Avenue. Here, Lieutenant McCarrick testified
    that he selected the 3600 Kensington location for the checkpoint because of
    his examination of three years of incident data or statistical evidence for the
    City of Philadelphia. The statistical evidence broken down by police district
    revealed that the 24th District, where 3600 Kensington Avenue is located,
    had the fifth highest rate of DUI-related incidents in the city. See 
    Fioretti, 538 A.2d at 577
    (“[T]he location of the roadblock was chosen based on a
    statistical analysis of which district had the highest number of driving under
    the influence arrests or accidents[.]”).    We, therefore, agree with the trial
    court’s conclusion that the checkpoint at 3600 Kensington Avenue was
    constitutional because the Commonwealth substantially complied with the
    Tarbert/Blouse guidelines.       Accordingly, the trial court did not err in
    denying Appellant’s Petition.
    To   the   extent   Appellant   relies   on   this   Court’s   decision   in
    Commonwealth v. Blee, 
    695 A.2d 802
    (Pa. Super. 1997), to compel a
    different result, we disagree.    In Blee, the appellee was stopped at a
    sobriety checkpoint set up on Route 11 in Edwardsville, Luzerne County.
    
    Blee, 695 A.2d at 803-04
    . The police officer responsible for overseeing the
    selection of the checkpoint testified that, prior to selecting the location, “he
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    reviewed studies from [DOT] regarding DUI arrests and DUI-related
    accidents in Luzerne County during the years 1989 through 1994.”                
    Id. at 804.
    The officer, however, admitted on cross-examination that “the studies
    were not specific to DUI-related accidents and arrests at the particular
    location of the sobriety checkpoint, that is, Route 11 in Edwardsville.” 
    Id. He acknowledged
    that the studies specifically “indicated that, among roads
    in Luzerne County, Route 11 had the second highest incidence of alcohol-
    related accidents, and that, among the municipalities in Luzerne County,
    Edwardsville had one of the highest incidences of alcohol-related accidents.”
    
    Id. “The studies
    did not provide any information concerning DUI-related
    accidents or arrests in the area of the checkpoint nor did [they] indicate the
    likelihood of the checkpoint location being traveled by drunk drivers.”             
    Id. Based on
    these facts, a panel of this Court held that the sobriety checkpoint
    at issue was unconstitutional because it did not comport with the
    Tarbert/Blouse     guidelines.       
    Id. at 806
      (“At   the   very   least,   the
    Commonwealth was required to present information sufficient to specify the
    number    of   DUI-related   arrests       and/or   accidents   on    Route    11    in
    Edwardsville.”).   As a result, the panel affirmed the trial court’s order
    granting the appellee’s suppression motion. 
    Id. The facts
    of the case sub judice are distinguishable from those in Blee.
    As the trial court noted, in Blee,
    the highway at issue was situated in rural portions of the state.
    Further, the data relied upon in Blee concerned a road which
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    J-S57035-14
    stretched for a great many miles in that rural area. Here, the
    road at issue is located in the 24th District of Philadelphia, hardly
    a rural area. And, it is significantly smaller in size and mileage
    than the location/rule area at issue in Blee.
    Trial Court Opinion, 3/21/14, at 10 (emphasis in original). Also, unlike Blee,
    in which only county-wide data was used in choosing a checkpoint location,
    here Lieutenant McCarrick testified that he selected a location in the 24th
    District because the district had the fifth highest rate of DUI-related
    incidents in the City of Philadelphia. With respect the specific location in the
    24th District, Lieutenant McCarrick testified that he chose the 3600 block of
    Kensington Avenue because it was large enough to carry out safely a
    sobriety checkpoint. Accordingly, Appellant’s reliance on Blee is misplaced.
    In sum, the Commonwealth presented sufficient evidence to establish
    that the location for the checkpoint at 3600 Kensington Avenue was likely to
    be traveled by intoxicated drivers. See 
    Worthy, 957 A.2d at 725
    (“[I]t is
    essential that the route selected for the roadblock be one which, based on
    local experience, is likely to be traveled by intoxicated drivers.”). Therefore,
    applying the Tarbert/Blouse guidelines, the checkpoint was constitutional.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/4/2014
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